EARL M. BETTERSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EARL M. BETTERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________________

December 9, 2015

Submitted November 16, 2015 Decided

Before Judges Messano and Sumners.

On appeal from the New Jersey Department of Corrections.

Earl M. Betterson, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Earl M. Betterson, an inmate serving a sentence at Northern State Prison for aggravated manslaughter, appeals from the final agency decision of the Department of Correction (the DOC) adjudicating him guilty of prohibited act *.010, participating in an activity related to a security threat group (STG). N.J.A.C. 10A:4-4.1. The charge arose on August 23, 2013, when the DOC inspected Betterson's mail to another inmate, had the mail reviewed by the Special Investigations Division (SID), and concluded the letter contained terms commonly used by the Bloods, a gang classified by DOC as an STG. DOC served Betterson with the charge on August 26, 2013.

Although the disciplinary hearing commenced on August 28, it was postponed as the DOC needed further information from SID in order to proceed. On September 5, the hearing reconvened. Betterson pled not guilty and was represented by counsel substitute. Neither Betterson nor his counsel substitute choose to make any statement. Betterson did not call any witnesses nor choose to confront any witnesses against him.

The hearing officer reviewed the SID report and other reports and concluded Betterson was guilty of the charged prohibited act. The hearing officer imposed a sanction that included the loss of phone privileges for ninety days, and one hundred and twenty days of administrative segregation, consecutive to a period of administrative segregation Betterson was already serving. Betterson's administrative appeal was denied on September 12, 2013, and this appeal followed.

Betterson argues that the interception of his mail violated his constitutional right to freedom of speech. He also contends that, contrary to the requirements of N.J.A.C. 10A:4-9.2, DOC failed to serve him with the disciplinary charges within forty-eight hours of the violation, and therefore the charge should have been dismissed. We have considered these arguments and affirm.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).

Betterson never raised a constitutional challenge before the agency, and, therefore, we could refuse to consider the issue on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, it is well-settled that "[i]n a prison context, an inmate does not retain those First Amendment rights that are 'inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 2540, 53 L. Ed. 2d 629, 641 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974)).

"We recognize that determining whether prison materials are gang related constitutes a particular Department of Corrections' expertise . . . ." Balagun v. N.J. Dep't. of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). Undoubtedly, security of the institution is a legitimate penological objective and is an issue best deferred to the agency charged with keeping the prisons safe. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Betterson's constitutional argument therefore lacks any merit.

Regarding the delay in serving Betterson with the charge, N.J.A.C. 10:4-9.2 requires that a disciplinary report be served on an inmate within forty-eight hours of the charge "unless there are exceptional circumstances." However, pursuant to N.J.A.C. 10A:4-9.9, DOC's failure to comply does not mandate dismissal of the charge, but rather leaves it to the discretion of the hearing officer whose "discretion shall be guided by" the length and reason for the delay, whether the inmate has been prejudiced in preparing his defense and the seriousness of the infraction. N.J.A.C. 10A:4-9.9(a)(1)-(4).

"It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). The Legislature has provided DOC with broad discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

In this case, the hearing officer explained the reasons for the one-day delay in serving Betterson with the charge. He noted that a clerical error caused the charge to be served on another inmate, but, when the error was discovered, it was quickly remedied. Moreover, Betterson has failed to explain how this one-day delay prejudiced his defense.

Affirmed.